The evidence in this case raises what
the law calls an affirmative defense. <See
Affirmative Defense, Instruction 2.9-1.>

The defendant claims that that
(he/she) did not participate in the homicidal act and had no reason to foresee
that any of the other participants in the <insert underlying felony>
intended to engage in conduct likely to result in death or serious physical
injury.

For you to find the defendant not
guilty of this charge, the defendant must prove the following elements by a
preponderance of the evidence:

Element 1 - Did not participate
in the homicidal actThe first element is that the
defendant did not commit the homicidal act or in any way solicit, request,
command, importune, cause or aid in the commission of it.

Element 2 - Was not armedThe second element is that the
defendant was not armed with a deadly weapon or any dangerous instrument.
"Deadly weapon" is defined by statute as any weapon, whether loaded or unloaded,
from which a shot may be discharged, or a switchblade knife, gravity knife, billy, blackjack, bludgeon, or metal knuckles. "Dangerous instrument" means any instrument, article or substance which, under the circumstances in
which it is used or attempted or threatened to be used, is capable of causing
death or serious physical injury. "Serious physical injury" means physical
injury which creates a substantial risk of death, or which causes serious
disfigurement, serious impairment of health or serious loss or impairment of the
function of any bodily organ. It is important to note that the article need not
be inherently dangerous; all that is required is that the article was capable of
causing death or serious physical injury under the circumstances in which it was
used. Any article or substance, without limitation and even though harmless
under normal use, may be found by you to be a dangerous instrument if, under the
circumstances of its use or threatened or attempted use, it is capable of
producing serious physical injury or death. The state need not prove that in
fact death or serious physical injury resulted, only that the instrument had
that potential under the circumstances.

Element 3 - Did not believe any
other participant was armedThe third element is that the
defendant had no reasonable ground to believe that any other participant was
armed with such a weapon or instrument. A "reasonable ground to believe" means
that a reasonable person in the defendant's situation, viewing the circumstances
from the defendant's point of view, would have shared that belief.

Element 4 - Did not believe any
other participant was likely to commit homicidal actThe fourth element is that the
defendant had no reasonable ground to believe that any other participant
intended to engage in conduct likely to result in death or serious physical
injury.

Conclusion

In summary, the defendant must prove
by a preponderance of the evidence that 1) (he/she) did not participate in the
homicidal act in any way, 2) (he/she) was not armed, 3) (he/she) had no
reasonable ground to believe that any other participant was armed, and 4)
(he/she) had no reasonable ground to believe that any other participant intended
to engage in conduct likely to result in death or serious physical injury.

If you
unanimously find that the state has failed to prove beyond a reasonable doubt
any of the elements of the crime of felony murder, you shall then find the
defendant not guilty and not consider (his/her) affirmative defense.

If you
unanimously find that the state has proved beyond a reasonable doubt each of the
elements, then you shall consider the defendant's affirmative defense. If you
unanimously find that the defendant has proved (his/her) defense by a
preponderance of the evidence, then you shall find the defendant not guilty.
If, on the other hand, you unanimously find that the defendant has not proved
(his/her) affirmative defense by a preponderance of the evidence, then you shall
find the defendant guilty.

Commentary

The court is not obligated to
submit this defense to the jury unless there is sufficient evidence to support a
finding that each of these conditions has been proved by a preponderance of the
evidence. State v. Valeriano, 191 Conn. 659, 663 (1983), cert. denied,
466 U.S. 974, 104 S. Ct. 2351, 80 L. Ed. 2d 824 (1984); State v. Small,
242 Conn. 93, 100-101 (1997). It is not clear whether it is proper for the
trial court to instruct on this affirmative defense when the state requests the
instruction but the defendant objects. See State v. Small, supra, 242
Conn. 101-102 (declining to decide issue because even if improper, instruction
did not harm defendant).